The impending confirmation of Judge Amy Coney Barrett to the Supreme Court promises to bring us a Court with a 6-3 “conservative” majority. As a result, Democrats could be facing decades in the Supreme Court wilderness. Even if Biden wins the election for President, the only member of the Court likely to retire in the next few years is Justice Breyer, who recently turned 82; but since Breyer is one of the Court’s “liberals,” Biden’s replacing of Breyer would not change the Court’s ideological balance. The next oldest Justice is Clarence Thomas, currently 72, which is youthful by today’s Supreme Court standards.
But there’s another possibility. Congress could potentially increase the number of Justices, giving Biden as President the ability theoretically to add four, or six, or even more Justices in an attempt to cement a permanent Democratic majority. In fact, Congress has changed the number of Justices multiple times in the past, although the last time was in 1869. In recent days, prominent Democrats — including Senator Edward Markey of Massachusetts, Congressman Jerrold Nadler of New York (my Congressman!), and former Attorney General Eric Holder — have advocated that if Barrett is confirmed, Democrats should retaliate by expanding the number of Justices to regain the majority of the Court.